Comments,
proposals and amendments submitted electronically

Governments

Non-governmental
organizations

Comments,
proposals and amendments submitted electronically

Governments

Chile

Draft
Article 9bis
Access to Justice

States
Parties shall ensure effective access to justice for persons with disabilities
on an equal basis with others, facilitating their effective role as direct
and indirect participants in all legal proceedings, including investigative
and other preliminary stages.

Colombia

Colombia
- Draft Article 9

EQUAL
RECOGNITION AS A PERSON BEFORE THE LAW

States
Parties shall:

(a)
Recognize persons with disabilities as individuals with equal rights before
the law;

(b)
Accept that persons with disabilities have full legal capacity on an equal
basis except as provided by law;

(c)
Ensure that where assistance is necessary to exercise that legal capacity:

(i)
The assistance is to the extent possible proportional to the degree of
assistance required by the person concerned and tailored to their circumstances,
and does not undermine the legal capacity, rights and freedoms of the
person;

(ii)
Relevant decisions are taken by a competent, (independent) and impartial
authority in accordance with a procedure established by law and with the
application of relevant legal safeguards (including periodic review)

(d)
Ensure that persons with disabilities who experience difficulty in asserting
their rights, in understanding information and in communicating have access
to assistance to understand information presented to them and to express
their decisions, choices and preferences, to participate in all stages of
procedure in courts and tribunals, as well as to enter into binding agreements
or contracts, to sign documents and act as witnesses;

(e)
Take all appropriate and effective measures to ensure the equal right of
persons with disabilities to own, inherit, use or otherwise dispose of property,
to control their own financial affairs and to have equal access to bank
loans, mortgages and other forms of financial credit;

[Proposal
by the African Group excluding its paragraph iii)]

Costa
Rica

Costa
Rica- Draft Article 9

EQUAL
RECOGNITION AS A PERSON BEFORE THE LAW

States
Parties shall:

a.
Recognize persons with disabilities as individuals with equal rights and
obligations before the law [from proposals by Mexico and EU]

b.
Recognize the legal capacity of persons with disabilities on an equal basis
with others in all fields [new language based on ideas of WG]

c.
Ensure that where assistance is necessary to exercise that legal capacity:

i.
Such assistance is adequate to meet the person's requirements and does
not undermine his/her rights and freedoms [from proposals by WG and Uganda
]

ii
Relevant decisions are taken by a competent, independent and impartial
authority in accordance with a procedure established by law and with the
application of relevant legal safeguards, including provisions for periodic
review [from proposals by EU and Costa Rica]

d.
Take all necessary measures to ensure everyone whose rights and freedoms
as recognized in this convention are violated should have an effective remedy
before a national authority, notwithstanding that the violation has be committed
in an official capacity [from proposal by Costa Rica, this could be placed
elsewhere]

Delete
paras d), e), f) and g) of the proposal by Japan because their content is
already covered in this proposal and also in art. 19.

European
Union

Proposed
Modifications to Draft Article 9

EQUAL
RECOGNITION AS A PERSON BEFORE THE LAW

States
Parties shall:

(a)
Recognise persons with disabilities as individuals with rights before the
law equal to all other persons;

(b)
Accept that persons with disabilities have full legal capacity on an equal
basis as others 1 , including in
financial matters;

EU
Proposal: EU suggests replacing (a) and (b) with the following
paragraph:“Recognise persons with disabilities as individuals with equal
rights before the law and guarantee equality before the law, without discrimination
against persons with disabilities;”.

(c)
ensure that where assistance is necessary to exercise that legal capacity:

(i)
the assistance is proportional to the degree of assistance required by
the person concerned and tailored to their circumstances, and does not
interfere with the legal capacity, rights and freedoms of the person;

(ii)relevant
decisions are taken by a competent, independent and impartical authority
in accordance with a procedure established by law and with the application
of relevant legal safeguards including provisions for review; 2

EU
Proposal 4th AHC: replace paragraph (c) with Canadian language:

“2.
States Parties shall ensure that where adults persons with disabilities
need support to exercise their legal capacity, including assistance to understand
information and to express their decisions, choices and wishes, the assistance
is proportional to the degree of support required and tailored to the adult's
person's individual circumstances.

1.
Relevant decisions, inter alia on the loss or restriction of legal capacity,
are taken by a competent, independent and impartial
authority in accordance with a procedure established by law and
with the application of relevant legal safeguards including provisions for
review;

2.
States Parties shall provide by law for a procedure with appropriate safeguards
for the appointment of a personal representative to exercise legal capacity
on the adult's person's behalf. Such an appointment
should be guided by principles consistent with this Convention and international
human rights law, including:

(a)
ensuring that the appointment is proportional to the adult's
person's degree of legal incapacity and tailored to the adult's
person's individual circumstances; and

(b) ensuring that personal representatives take into account, to the maximum
extent possible, the adult's person's decisions, choices and wishes.”

(d)
ensure that persons with disabilities who experience difficulty in asserting
their rights, in understanding information, and in communicating, have access
to assistance to understand information presented to them and to express
their decisions, choices and preferences, as well as to enter into binding
agreements or contracts, to sign documents, and act as witnesses; 3

EU
proposal: Delete 9(d)

(e)
take all appropriate and effective measures to ensure the equal right of
persons with disabilities to own or inherit property, to control their own
financial affairs, and to have equal access to bank loans, mortgage and
other forms of financial credit;

EU
proposal: Delete 9(e)

(f)
ensure that persons with disabilities are not arbitrarily deprived of their
property.

EU
proposal 4th AHC to renumber 9(f) into 9(4)(5)

Japan

As
stated in the course of the current session, the Government of Japan wishes
to see that our proposal on article 9 paragraph (g) tabled in the 3rd and
4th AHC will now find a place under article 9 bis [Access to Justice] proposed
by Chile, as a separate paragraph, which reads :

"Take
appropriate and effective measures to eliminate physical and communication
barriers and to reduce understanding difficulty of persons with disabilities
in order to exercise the rights provided in Article 14 of the International
Covenant on Civil and Political Rights."

(rationale)
To facilitate the effective role of the persons with disabilities in legal
proceedings as stated in Art.9 bis, on an equal basis with others, reduction
or removal of physical and communication barriers as well as understanding
difficulty is fundamental for all persons with disabilities regardless their
type of disability.

Article
9 bis is well drafted as a general statement, but has a room to be a bit
further elaborated how we should facilitate their effective role, although
we should avoid over-prescriptive languages.

Non-governmental
organizations

International
Disability Caucus

-
Information sheet

Supported
Decision- Making vs. Guardianship

Guardianship
is an ancient mechanism that was constructed without consulting people with
disabilities. Guardianship laws assume that some people do not have the
capacity to make legally binding decisions. We invite the Ad Hoc Committee
to adopt a paradigm shift in which everyone has an equal legal capacity,
without distinction based on disability.

Supported
Decision-Making means a person may accept help in making decisions without
relinquishing the right to make decisions. In supported decision-making,
freedom of choice is never violated. Supported decision-making does not
question the wisdom of a person's choices but allows everyone the dignity
of risk.

Supported
Decision-Making helps a person to understand information and make decisions
based on his or her own preferences. A person with a learning disability
might need help with reading, or may need support in focusing attention
to make a decision. A person who has no verbal communication might have
a trusted family member who interprets their non-verbal communications,
such as positive or negative physical reactions, or uses Alternative and
Augmentative Communication.

Guardianship
laws theoretically protect people with disabilities from abuse but in practice
they open the door to abuse. Guardianship facilitates institutionalization;
the guardian can easily give consent even when the person opposes being
institutionalized. One decision by the authorities and a person loses the
right to decide where to live, loses the right to vote, the right to choose
who to marry, the right to start a business. This results in living in a
humiliating and degrading way.

Supported
decision-making

supports and upholds a person's will

advocates and defends their side

encourages and engages, empowers participation and
responsibility

means that a person has the ultimate say in their decisions

makes a person stronger

Guardianship

can oppose or distort a person's will

fosters lack of responsibility

suppresses the abilities a person has and stunts the
person's ability to grow

censors the person's voice and access to information
significantly affecting the person's life

-
Draft proposal

1)
States Parties reaffirm that persons with disabilities have the right to
recognition everywhere as a person before the law.

2)
States Parties shall recognise that persons with disabilities have, and
are entitled to exercise and enjoy, legal capacity on an equal basis with
others, in all fields.

3)
States Parties shall:

a
) ensure that persons with disabilities are entitled to use support to
exercise legal capacity, and that such support is adequate to meet the
person's requirements , does not undermine the legal capacity or rights
of the person , respect s the will and preferences of the person, and
is free from conflict of interest and undue influence ;

If
Disabled Peoples Organizations have no say in the decision-making about
a convention to protect and defend our rights, that convention will be fatally
flawed. We see the results in the discussion and amended text for articles
9 and 10.

Article
9:

Any
form of substituted decision-making – guardianship, appointment of a personal
representative, or determination of legal incapacity – excludes people with
disabilities from rights that non-disabled men and women take for granted.

We reject paragraph 2b of article 9 in its entirety
and call for re-drafting of paragraph 2 and 2a to guarantee to people
with disabilities a capacity to act identical to that of other persons
and to clarify that the limitation “to the extent possible” refers only
to obligations that are subject to progressive realization.

-
IDC Response on Article 9

International
Disability Caucus Rejects the Provision of Article 9 Dealing with Appointment
of a Personal Representative

This
Convention is aimed at promoting and protecting the rights of persons with
disabilities, and not at maintaining discriminatory laws and practice that
take away the personhood of persons with disabilities. The Convention must
accordingly establish the principles required to empower persons with disabilities
in the eyes of the law.

The
Article on General Principles which received wide support from this Ad Hoc
Committee includes

Individual autonomy including the freedom to make one's
own choices

Non-discrimination

Acceptance of disability as part of human diversity
and humanity

Inclusion and equal participation in society

Article
2 is a substantive obligation as well as a means to interpret all the substantive
obligations in this Convention.

The
current draft of 9(3)(b) undermines, is inconsistent with, and violates
these principles and obligations as well as the purpose of this Convention.
Accordingly, paragraph 3(b) of article 9, providing for appointment of a
personal representative for people with disabilities, is unacceptable to
the International Disability Caucus.

Although
an attempt was made to avoid offensive language, the effect of paragraph
2(b) is to endorse substituted decision-making, which is based on a concept
of incapacity and takes away the person's right to make his or her own decisions.
“Personal representative” is a term of art meaning “guardian”.

We
applaud the delegations of Costa Rica and others that have called for deletion
of paragraph b. The International Disability Caucus affirms that Supported
Decision Making is the only paradigm for legal capacity that upholds the
principles articulated in Article 2 of this Convention.

The
International Disability Caucus is also concerned about two other aspects
of this draft article. First, there is language in the chapeau of paragraph
3 that may inadvertently limit all the substantive obligations in that paragraph.
We advocate moving the phrase ‘to the extent possible” so that it limits
only the assurance that support will be provided, which is a resource-sensitive
obligation and subject to the concept of progressive obligation that has
been extensively discussed by this Committee.

Second,
legal capacity has been differentiated from the capacity to act or exercise
that legal capacity, and only equal legal capacity – not equal capacity
to act - is guaranteed to people with disabilities. CEDAW, in guaranteeing
women and men identical legal capacity, treats it as including capacity
to act, for example by concluding contracts. Women and men with disabilities
will have inferior rights to non-disabled women and men if equal capacity
to act is not guaranteed in our Convention.

-
Legal Capacity note

Capacity
in law constructed by society:

The
first thing to appreciate in relation to legal capacity is that it is socially
constructed and is thus reflective of choices societies have made at different
points of time. Historically capacity has been an attribute or a presumption
that the law has conferred or denied from populations. A useful illustration
of this process is provided by the legal management of the capacity of women.
The negotiable content of the concept is again demonstrated by the Convention
on the Rights of the Child acknowledging the evolving capacities of the
child and explicitly incorporating the right to participation. (article
12) Therefore when we are asking for the legal disqualifications applicable
against us (persons with psychosocial disability) to be lifted we are in
a manner of speaking treading paths traversed by other excluded groups.
We are saying that the allegation of incapacity that society makes in relation
to some or all of us is false and we have a right to live like any other
on our own terms.

Cognitive
Capabilities Privileged in Legal Construction of Capacity

Whilst
accepting the constructed nature of legal capacity (it is necessary to understand)
that it is primarily constructed from a normative standard of cognitive
capabilities. This privileging of cognitive capabilities is questionable
as not all of us use cognitive capabilities to make our decisions. Should
those of us who use an emotive or intuitive basis for reaching decisions
be considered incapable? The law by according primacy to a certain way of
being in the world seems to be manufacturing incapacity labels. If the presumption
comes into being because of the way in which the law treats different kinds
of intelligences then evidently a Disability Rights Convention needs to
change this presumption and recognize these differences. This process would
stand initiated if the Convention should unequivocally state that all persons
with disabilities have legal capacity.

Legal
Capacity not to do with Wisdom of Choices

One
of the arguments put forth for substituted decision-making is that a number
of persons do not have the wisdom to exercise legal capacity. But legal
capacity is about the freedom to make choices and not the wisdom of those
choices. There is an inherent freedom for all human beings to make the same
or new mistakes and to learn or not learn from them. This liberty to learn
from mistakes is at other than legal sites referred to as experimentation
or even learning from trial and error. Humanity has progressed by allowing
people the freedom to make mistakes. This may be because it has often been
found that the blunder of today becomes the discovery of tomorrow. Whenever
any people are not accorded the freedom to make their own errors they are
in effect not being allowed to develop in accordance with their own genius
and it is this discrimination and deprivation that needs to be addressed
in relation to persons with psychosocial disability. Dignity of risk and
the right not to be protected are inherent rights of all adults. A Convention
which is being negotiated to return to persons with disability their full
personhood has necessarily to interrogate all stereotypes because if it
were to get entrapped by stereotypes it would not just reinforce a mistaken
impression it would legitimize it.

Need
to Distinguish between a Norm and its Implementation

It
is next contended by the proponents of guardianship that supported decision-making
cannot substitute for guardianship and even if it could such support is
not available. These arguments it is submitted conflate the concerns of
implementation into the adoption of norms. Should these constraints of implementation
provide the basis for adoption of norms under the Convention especially
when the norms adopted under the Convention will be the basis of all future
discourse on rights of person with disabilities? A pragmatic approach for
the implementation of norms is acceptable but a similar perspective towards
the adoption of norms is questionable because this is letting the limitations
of today confine the developments of tomorrow.

Substituted
Decision Making will apply to all persons with psychosocial disability

A
further argument by proponents of some form of substituted decision-making
is that as a rule all persons with disability have legal capacity but there
are a very small percentage of persons with severe disability for whom supported
decision-making will not be sufficient and for whom guardianship will need
to be provided. Proponents argue that these guardianship arrangements should
be put in place subsequent to determination by a judicial body after due
observance of fair procedure safeguards. They contend that this substituted
decision-making will be the exception not the rule and would apply to a
small percentage of cases.

The
first consequence of accepting this argument will be that the rule of substituted
decision-making will need to be incorporated in the Convention. Now the
rule according to its proponents has been incorporated only for a very small
percentage of persons with psychosocial disability. It therefore becomes
necessary to ask by what procedure this small percentage of persons will
be identified. Evidently this will be done from case to case. This process
of identification will render the capacity of all persons with psychosocial
disability open to question.

This
would give rise to a situation where for questionable advantages to a small
group of persons all persons with psychosocial disability shall be disadvantaged.
The contention of questionable advantage is being made because studies evaluating
the functioning of guardianship have found abuse isn't in fact prevented
with guardianship, it is facilitated. Further these arrangements once made
cause the guardian to take all decisions on behalf of and without consultation
with the ward. This ouster makes for the civil death of the persons subjected
to guardianship.

Supported
Decision Making the Sole Model

In
the circumstances it may be worthwhile to ask if the paradigm of supported
decision-making would be a preferable option for all persons with disability
as it would keep us at the centre of all decisions affecting us. It would
interrogate the cognitive privileging existing in present laws and yet allow
persons with disabilities along with others needing help to seek assistance
in those tasks which require higher reliance on cognitive capabilities.

An
assistance provided irrespective of the will of the recipient is an infliction
and not a support. In making this statement the general humanitarian impulse
of helping people in distress or in life endangering situations is not being
questioned, what are being questioned are the procedures whereby persons
with psychosocial disability are displaced from governing their own lives.
Whilst an acknowledgement of human interdependence furthers the human rights
of all persons; the imposition of dependence is a negation of human aspiration,
respect and choice. It is for this recognition of human interdependence
that supported decision-making needs to displace guardianship in legal constructions
of capacity.

-
Intervention on Legal Capacity at the Fifth Session

Address
by Amita Dhanda on behalf of IDC on Legal Capacity

Mindful
of the time constraints within which this Committee is functioning the International
Disability Caucus wishes to raise those issues only which are of foundational
concern to us. Our suggestions n drafting sequencing etc we will continue
to you in memorandums.

I am
speaking to you in relation to article 9 and the first point I wish to make
is that the entire discussion on legal capacity has been textually and not
contextually made. Consequently the social and legal history which has prompted
the introduction of this article has not been acknowledged. It has not been
recognized that disability has been long equated with incompetence. This
equation has not just been confined to social prejudice but has in fact
passed into the law. Legal incorporation has been both at the normative
level and at the level of practice. It is the incorporation at the level
of practice which explains why my visually impaired friend –colleague is
prevented from opening a bank account. And the normative induction prevents
persons with psychosocial disability to conclude contracts.

In
view of these disqualifications and exclusions it is essential for us that
article 9 should unequivocally declare that all persons with disability
have full legal capacity. On similar grounds of exclusion and disqualification
article 15(2) was incorporated in CEDAW to state that women had legal capacity
identical to that of men. A provision which has provided a basis for challenging
laws and practices where women were excluded only because they were women;
the induction of this article in the Convention would provide a similar
opportunity to persons with disability.

In
such a situation it is specious to say that persons with disability cannot
be allowed legal capacity as such capacity is denied to them in the national
laws. Instead it is precisely because such disqualifications subsist in
national laws that the Convention needs to incorporate norms which supersede
the national laws.

The
other reason why persons with disability are supposed to lack capacity is
because some of us for some things and others for all matters may need support
whilst carrying out their life activities and taking decisions in relation
to them. It may be worthwhile here to ask that are persons with disability
being singled because they are the only ones needing support to carry out
life activities or are they being discriminated against because they are
the only ones seeking this support openly and explicitly. It is important
to appreciate that for us persons with disability supported decision-making
is about seeking help to live life on our terms. It is for this reason that
we do not wish that support in this Convention be viewed as a negative and
reactive activity. Instead our contention is that this Convention should
recognize as a principle that persons with disability are entitled to support.
And the seeking or provision of this support will in no way undermine or
negate their legal capacity. In fact Supported Decision-Making provides
us with the opportunity to expand our capabilities. It is due to this opportunity
of capability development whilst support from a scale to 0-100 is acceptable
the legal device of substituted decision-making or guardianship is unacceptable.

Guardianship
is unacceptable because it is premised on the incapacity of persons with
disability. It is a device by which whilst the life affairs of persons with
disability are managed our rights to growth and development are thwarted.

Legal
Capacity has been constructed in ignorance of the disability experience.
It is a protection which has been mechanically extended to persons with
disability without asking us as to what it does to our lives and the quality
of our living. It is on the basis of our lived experience that we are demanding
that this Convention should accord recognition to us as persons before the
law with full legal capacity. Any principle whereby we are denied the capacity
to act would be no more than a legitimization of subsisting discriminatory
laws.

We
also demand that in acknowledgement of the principle of human interdependence--
which we hold is going to be disability's special contribution to human
rights jurisprudence— the Convention should recognize that we are entitled
to support and the provision or obtaining of such support in no way negates
our capacity.

Lastly
we are aware that the system we are proposing is not without its pitfalls
and there would be need to devise regulatory measures to prevent abuse.
However we believe that these legislative procedures both for facilitating
access to supported decision making and to prevent its abuse should be individually
designed by State Parties in consonance with their ground level realities.
The Convention should again lay down the principle that such procedures
are required but the details of the procedure should be worked out by each
State Party.

In
conclusion honourable Delegates we urge you to negotiate a Convention which
is a charter for our hopes and aspirations and not a stranglehold on our
future.